What is age discrimination?

Can your employer fire you because of your age? Does the law protect older employees from discrimination the same way it protects employees from discrimination based on their race or gender?

The Age Discrimination in Employment Act (ADEA) provides federal protection from employment discrimination to employees over the age of forty. This means that an employee over the age of forty cannot be fired, rejected, or paid less because of his age. Chapter 21 of the Texas Labor Code similarly protects employees.

The ADEA only covers employers with twenty or more employees. Further, it only applies to employees and not independent contractors. A worker is an employee if his employer has the right to control the manner and means by which he performs his work and he is economically dependent on his employer.

From the language of the ADEA it is also clear that only employees over the age of forty are protected. Thus, there is no protection for employees under the age of forty for age discrimination. Also, the ADEA does not protect employees over forty from being replaced by someone older—it only protects those employees from being replaced by someone younger.

For example, a 55 year old employee who has his benefits and pay cut because of his age may have a claim for age discrimination under the ADEA. Similarly, a 55 year old employee who is fired then replaced by a thirty-year-old solely because of his older age may have a claim.

Proving Age Discrimination

To prove age discrimination, an employee must first establish his prima facie case. Courts use the burden-shifting framework laid out by the Supreme Court in McDonnell Douglas. The employee must show he suffered an adverse employment action, he was over forty years old, he was otherwise qualified for the position, and he was replaced by someone substantially younger.

Take, for example, a software engineer who is 56 years old. He is capable of doing all the tasks assigned to him and he has no reprimands or warnings on his record. His employer decides to fire him and replace him with a 30-year-old with the exact same qualifications. Under these facts, the software engineer can easily establish his prima facie case. His 30 year old replacement is outside the protected class—employees forty years or older. A replacement outside the protected class will always be “substantially younger” for purposes of the prima facie case.

However, the replacement does not necessarily have to be younger than 40 years old for the software engineer to make a case for age discrimination—the replacement need only be substantially younger. Take, for example, the same facts as above but the replacement is forty years old. The age gap of sixteen years between the 56-year-old software engineer and the forty-year-old replacement is likely enough to establish that the software engineer was replaced by someone substantially younger.

Once the prima facie case is made, the employer must show that it had a valid, nondiscriminatory reason for firing the protected employee—for example, that he violated company policy or engaged in similar misconduct.

The employee must then show that the employer’s offered reason is actually a pretext—a cover-up—for discriminating against him based on his age. There are several ways an employee can show this.

First, an employee can provide evidence that the reasons is demonstrably false or inconsistent. For example, the employer claims he fired the employee for being consistently late, but the employee’s punch card shows that he has always showed up on time. Similarly, the employee tells the employee that he is being fired for being when he is fired, but later on the employer claims it was because the employee had disciplinary issues.

Second, an employee can show that employer’s reason for firing him was nonsensical, arbitrary, or capricious. Commonly this can be demonstrated by showing that the employer failed to follow its own internal policies for firing employees. Take, for example, an employer policy that states that employees will receive three disciplinary warnings before being fired. If the employer fires a protected employee after just one this may be evidence that the reason for firing was a pretext for discrimination.

Third, age-related remarks can be used to infer that an employer’s reason for firing an older employee is a pretext for discrimination. For example, evidence that an employer expressed a desire for “younger workers” before firing the protected employee.

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Robert J. Wiley is Board Certified in Labor and Employment Law by the Texas Board of Legal Specialization. All other attorneys not board certified. Robert J. Wiley is the attorney responsible for this website. All meetings are by appointment only. Principal place of business: Dallas, Texas.